Friday, August 24, 2018

In a resource-limited state, rights of the state overpower the rights of the individual

The Supreme Court has ruled that the larger public interest of health and medical care would prevail over the right to voluntary retirement by the doctors as medical services are part and parcel of right to life itself.

Right to retire as a fundamental right can't be supreme then the right to life, said the bench of Justice Arun Mishra and Justice S. Abdul Nazeer in their judgment pronounced on Tuesday. When services are required, denial of voluntary retirement is permissible.

Right to life is enshrined in the Article 21 of the Constitution of India, which guarantees protection of life and personal liberty to every citizen and states as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The scope of interpretation of right to life and personal liberty is very wide. In various judgements of the Supreme Court, Article 21 has been expanded to also include right to life with dignity, which is derived from the directive principles of state policy and therefore includes protection of health.

In the matter of State Of Punjab & Ors vs Ram Lubhaya Bagga Etc. Etc on 26 February, 1998, the Supreme Court held: “This Court has time and again emphasised to the Government and other authorities for focussing and giving priority and other authorities for focussing and giving priority to the health of its, citizen, which not only makes one's life meaningful, improves one's efficiency, but in turn gives optimum output. Further to secure protection of one's life is one of the foremost obligation of the State, it is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this both under Article 21 and under Article 47 of the Constitution.”

“When we speak about a right, it corelates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty… Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds.”

In Mohd. Ahmed (Minor) vs Union Of India & Ors. on 17 April, 2014, the Delhi High Court ruled that “… By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health. This means that Government must at the bare minimum ensure that individuals have access to essential medicines even for rare diseases like enzyme replacement for Gaucher disease. Availability of a very expensive drug virtually makes it inaccessible (68).

Government cannot cite financial crunch as a reason not to fulfil its obligation to ensure access of medicines or to adopt a plan of action to treat rare diseases. In the opinion of this Court, no government can wriggle out of its core obligation of ensuring the right of access to health facilities for vulnerable and marginalized section of society, like the petitioner by stating that it cannot afford to provide treatment for rare and chronic diseases (69).

Therefore, given the importance of preservation of human life, it is the duty of the state to protect the right to life of every citizen as a fundamental right.

The right to retire has to be "interpreted with the rights of the State government... As it is obligatory upon the state government to make an endeavour under Article 47 (of the Constitution) to look after the provisions for the health and nutrition of the people," said Justice Mishra.  Article 47 of the Constitution says that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health.

Referring to Article 51A, the court said that it is the fundamental duty of every citizen to have compassion and humanism for living creatures and it can't be done by depriving the poorest of the poor essential medical services and to leave them at the mercy of the doctors, the judgement said. 

The court said this while reversing the November 11, 2017 judgement of the Allahabad High Court by which it had allowed the plea for voluntary retirement by the doctors and directed that they may be treated as from government service from November 30, 2017 and December 31, 2017.

The issue before the top court was whether under Rule 56 of the Uttar Pradesh Fundamental Rules, an employee has an "unfettered right to seek voluntary retirement by serving a three-month notice to the State government.

Our ancient Vedas have described four stages of life, called Ashrams; Brahmacharya ashram, Grihastha ashram, Vanaprastha ashram and Sanyasa ashram. Each stage has its own defined duties or dharma.

Brahmcharya is the period of learning, which helps oneself to prepare for the three stages of life to come, while Grahastha asthram is for working to earn ethically.

A person in the vanprashtha stage of life has relinquished his duties to the next generation and now takes on the role of an advisor. A person in the sanyas ashram is a philosopher. He/she is detached from material life and is dedicated to the welfare for all.

A doctor who seeks voluntary retirement has earned name and money for himself. And by the time he/she reaches the role of an advisor, where the community can gain from their knowledge gained over the years, they choose to opt out by way of voluntary retirement. There may come a time, when the govt. might have no advisors or researchers.

In a resource-limited state, therefore the rights of the state overpower the rights of the individual

Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Immediate Past National President IMA

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